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Bipartisan Board OKs NSA Surveillance Program, With Suggestions


From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.


And I'm Melissa Block. A controversial NSA surveillance program that sweeps up volumes of communications - emails, photos, videos and more is constitutional. That's the unanimous conclusion today of the bipartisan privacy and civil liberties oversight board. The so-called 702 surveillance program, named for a section in the law, is designed to target foreigners. But civil liberties advocates say it captures the communications of Americans too. Details of how it works were first revealed by former NSA contractor Edward Snowden. As NPR's David Welna reports, the review panel is recommending only modest changes.

DAVID WELNA, BYLINE: Section 702 is part of an intelligence law rewrite Congress enacted the final year of the last Bush administration. It made legal the previously illegal practice of secret warrantless surveillance that President Bush ordered soon after the 9/11 attacks. Under the new law, the national security agency was authorized to tap the communications of foreigners living abroad, as well as those of any Americans seen connected to them - all without a court order. Privacy rights lawyer David Medine chairs the Privacy and Civil Liberties Oversight Board.

DAVID MEDINE: Overall, the board has found that the information the program collects has been valuable and effective in protecting the national security and producing valuable foreign intelligence information.

WELNA: This is the same panel that issued a scathing report earlier this year on another NSA program doing bulk collection of phone records. The 702 surveillance program had unanimous backing, not only for its effectiveness, but also for its constitutionality. Elisebeth Collins Cook served in the Justice Department during the Bush administration.

ELISEBETH COLLINS COOK: We concluded that the section 702 program is legal, valuable and subject to intense oversight.

WELNA: What sets the section 702 program apart from the NSA's bulk collection program, says another board member, privacy advocate James Dempsey, is that it was scrutinized on Capitol Hill.

JAMES DEMPSEY: This program is the program that was debated by Congress and written into the statute.

WELNA: Though it's targeted at foreigners, the program inevitably sweeps up Americans as well. Board Chairman Medine said that left board members uneasy.

MEDINE: The board unanimously said this is a program that goes right up to the line of constitutionality.

WELNA: Board Member Rachel Brand, another Bush administration veteran, disagreed.

RACHEL BRAND: I don't think it goes right up to the line. I think that there are some aspects that need to be watched to make sure that it doesn't come close to the line, but I'm comfortable that it's within the zone of reasonableness under the fourth amendment.

WELNA: The board did make a series of recommendations, such as urging officials to make more of an effort at filtering out Americans' communications that were not intelligence related. But Bush administration veteran Cook insisted the board found no evidence of intentional abuse.

COOK: Our recommendations as to queries using U.S. persons, identifiers and about collection are not driven by a concern that U.S. persons' rights are being violated.

ELIZABETH GOITEIN: Well, I'm sure it is true that the board found no evidence of abuse to date.

WELNA: That's Elizabeth Goitein. She co-directs the liberty and national security program at New York University's Brennan Center for Justice.

GOITEIN: I wouldn't say that means there's no abuse happening. But more importantly, it certainly doesn't mean that this is a program that could not be used for abuse - so, that is not susceptible to abuse. It is a massive collection program that sweeps up an enormous amount of Americans' international communication.

WELNA: Board Member Patricia Wald, herself a former federal appeals court judge, was disappointed the board rejected having a court review the foreign intelligence value of communications tapped by the NSA.

PATRICIA WALD: Perhaps it's my own experience as a judge, but I do feel that some kind of outside, non-involved approval ought to be necessary.

WELNA: The board concluded that none of its recommendations should require congressional actions. They're just suggestions. David Welna, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

David Welna is NPR's national security correspondent.